Citation Nr: 1000736
Decision Date: 01/06/10 Archive Date: 01/15/10
DOCKET NO. 08-13 207A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Reno,
Nevada
THE ISSUES
1. Entitlement to an effective date earlier than October 31,
2005, for the award of service connection for posttraumatic
stress disorder (PTSD).
2. Entitlement to an effective date earlier than October 31,
2005, for the award of individual unemployability.
3. Entitlement to an effective date earlier than October 31,
2005, for the award of service connection for residuals of a
cerebrovascular accident.
4. Entitlement to an effective date earlier than October 31,
2005, for the award of special monthly compensation (SMC)
based on housebound allowance.
5. Entitlement to an effective date earlier than October 31,
2005, for the award of service connection for hypertension
with renal insufficiency.
6. Entitlement to an effective date earlier than November 3,
2006, for the award of service connection for erectile
dysfunction.
7. Entitlement to an effective date earlier than November 3,
2006, for the award of SMC based on loss of use of a creative
organ.
8. Entitlement to an effective date earlier than October 31,
2005, for the award of service connection for peripheral
neuropathy of the right lower extremity.
9. Entitlement to an effective date earlier than October 31,
2005, for the award of service connection for peripheral
neuropathy of the left lower extremity.
ATTORNEY FOR THE BOARD
April Maddox, Counsel
INTRODUCTION
The Veteran served on active duty from December 1969 to
December 1972.
This matter comes to the Board of Veterans' Appeals (Board)
from a December 2006 rating decision of the Department of
Veterans Affairs (VA) Regional Office (RO) in Reno, Nevada.
The Veteran indicated on his September 2008 VA Form 9 that he
wished to testify at a Board hearing. A Travel Board hearing
was scheduled for September 2009 and the Veteran was provided
notice of this hearing in both August 2009 and September
2009. However, the Veteran failed to report to the scheduled
hearing and failed to explain his absence. Therefore, the
Board hearing request is considered withdrawn. See 38 C.F.R.
§ 20.704(d) (2009).
FINDINGS OF FACT
1. In an April 2003 rating decision the RO denied service
connection for hypertension. The Veteran perfected an appeal
to this decision but then withdrew the appeal in August 2005
correspondence. Therefore, the April 2003 rating decision is
final.
2. No formal or informal claims for any of the above claimed
benefits were filed prior to October 31, 2005.
3. The Veteran's correspondence received October 31, 2005,
establishes the earliest recognizable date of claim for
entitlement to a TDIU, and is the earliest point at which his
service-connected disabilities met the schedular criteria for
a TDIU.
4. The Veteran's original claims of entitlement to service
connection for erectile dysfunction and entitlement to SMC
based on loss of use of a creative organ were inferred during
a November 3, 2006 VA examination.
CONCLUSIONS OF LAW
1. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of service connection for
PTSD are not met. 38 U.S.C.A. §§ 5110, 5111 (West 2002); 38
C.F.R. §§ 3.151, 3.155, 3.400 (2009).
2. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of individual
unemployability are not met. 38 U.S.C.A. §§ 5110, 5111 (West
2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2009).
3. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of service connection for
residuals of a cerebrovascular accident are not met. 38
U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. §§ 3.151,
3.155, 3.400 (2009).
4. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of special monthly
compensation based on housebound allowance are not met. 38
U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. §§ 3.151,
3.155, 3.400 (2009).
5. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of service connection for
hypertension with renal insufficiency are not met. 38
U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. §§ 3.151,
3.155, 3.400 (2009).
6. The criteria for entitlement to an effective date prior
to November 3, 2006, for the award of service connection for
erectile dysfunction are not met. 38 U.S.C.A. §§ 5110, 5111
(West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2009).
7. The criteria for entitlement to an effective date prior
to November 3, 2006, for the award of SMC based on loss of
use of a creative organ are not met. 38 U.S.C.A. §§ 5110,
5111 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2009).
8. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of service connection for
peripheral neuropathy of the right lower extremity are not
met. 38 U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. §§
3.151, 3.155, 3.400 (2009).
9. The criteria for entitlement to an effective date prior
to October 31, 2005, for the award of service connection for
peripheral neuropathy of the left lower extremity are not
met. 38 U.S.C.A. §§ 5110, 5111 (West 2002); 38 C.F.R. §§
3.151, 3.155, 3.400 (2009).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran is seeking entitlement to effective dates earlier
than October 31, 2005 and November 3, 2006, for the above
listed awards. The Veteran contends that he should be
afforded effective dates of 2001, the date of his initial
claim for VA benefits.
Factual Background
A review of the record shows that the Veteran submitted an
initial claim for service connection for jungle rot of both
feet and legs in June 2001. The RO initially denied service
connection for jungle rot but in a February 2005 rating
decision granted service connection for fungal infection of
bilateral feet and legs and assigned a 10 percent disability
rating effective June 13, 2001, the day of the Veteran's
initial claim for service connection.
The Veteran submitted an initial claim for service connection
for diabetes, hypertension, and a lumbar spine disorder in
December 2002. The RO initially denied service connection
for these disabilities in April 2003 and the Veteran
perfected an appeal of that decision. By rating decision
dated in April 2004, the RO granted service connection for
diabetes but the denials regarding hypertension and a lumbar
spine disorder were continued. In August 2005
correspondence, the Veteran withdrew his pending appeal
regarding hypertension and a lumbar spine disorder.
On October 31, 2005 the Veteran submitted a claim for service
connection for PTSD, depression, hypertension, stroke,
diabetic neuropathy of the bilateral upper and lower
extremities, and restricted diet/activities. He was afforded
VA examinations specific to diabetes and PTSD in November
2006. By rating decision dated in December 2006 the RO
awarded the benefits on appeal. The Veteran disagreed with
the effective dates assigned and perfected this appeal.
Relevant Law
The effective date of an award of disability compensation to
a veteran will be the day following separation from active
service or date entitlement arose if the claim is received
within one year of separation from active service; otherwise,
it will be the date of receipt of claim, or the date when
entitlement arose, whichever is later. 38 C.F.R. §
3.400(b)(2)(i).
A claim for a TDIU rating is essentially a claim for an
increased rating. See Hazan v. Gober, 10 Vet. App. 511
(1997). The general rule with respect to the effective date
of an award of increased compensation is that the effective
date of such award "shall not be earlier than the date of
receipt of application therefore." 38 U.S.C.A. § 5110(a).
This statutory provision is implemented by the regulation,
which provides that the effective date for an award of
increased compensation will be the date of receipt of claim
or the date entitlement arose, whichever is later. 38 C.F.R.
§ 3.400(o)(1).
An exception to that general rule applies under circumstances
where evidence demonstrates that a factually ascertainable
increase in disability occurred within the one-year period
preceding the date of receipt of a claim for increased
compensation. In that circumstance, the law provides that
the effective date of the award "shall be the earliest date
as of which it is ascertainable that an increase in
disability had occurred, if application is received within
one year from such date." 38 U.S.C.A. § 5110(b)(2); 38
C.F.R. § 3.400(o)(2); see also Harper v. Brown, 10 Vet. App.
125 (1997); VAOPGCPREC 12-98; 63 Fed. Reg. 56704 (1998). The
term "increase" as used in 38 U.S.C.A. § 5110 and 38 C.F.R.
§ 3.400 means an increase to a higher disability level. See
Hazan v. Gober, 10 Vet. App. 511 (1997).
In general, "date of receipt" means the date on which a
claim, information or evidence was received in VA. 38 C.F.R.
§ 3.1(r).
A specific claim in the form prescribed by the Secretary must
be filed in order for benefits to be paid to any individual
under the laws administered by the VA. 38 U.S.C.A. §
5101(a); 38 C.F.R. § 3.151(a). A "claim" means a formal or
informal communication in writing requesting a determination
of entitlement or evidencing a belief in entitlement to a
benefit. 38 C.F.R. § 3.1(p).
Any communication or action, indicating intent to apply for
one or more benefits under the laws administered by VA, from
a claimant, his duly authorized representative, a Member of
Congress, or some person acting as next friend of a claimant
who is not sui juris may be considered an informal claim.
Such informal claim must identify the benefit sought. Upon
receipt of an informal claim, if a formal claim has not been
filed, an application form will be forwarded to the claimant
for execution. If received within 1 year from the date it
was sent to the claimant, the formal claim will be considered
filed as of the date of receipt of the informal claim. 38
C.F.R. § 3.155(a).
A report of an examination or hospitalization which meets the
requirements of 38 C.F.R. § 3.157 will be accepted as an
informal claim for benefits. 38 C.F.R. § 3.157(a). Under 38
C.F.R. § 3.157(b), once a formal claim for compensation has
been allowed or a formal claim for compensation disallowed
for the reason that the service-connected disability is not
compensable in degree, receipt of a report of examination or
hospitalization by the VA will be accepted as informal claim
for increased benefits for an informal claim to reopen.
Furthermore, these provisions apply only when such reports
relate to examinations or treatment of a disability for which
service connection has previously been established or when a
claim specifying the benefit sought is received within one
year from the date of such examination, treatment or hospital
admission. 38 C.F.R. § 3.157(b)(1).
The effective date of reopened claims shall be the date of
receipt of claim or date entitlement arose, whichever is
later. 38 C.F.R. § 3.400(r).
Analysis
In the present case, the Veteran separated from active
service in December 1972. It is not in dispute that he did
not submit a claim for VA benefits within one year from his
discharge. Therefore, assignment of an effective date back
to the day following discharge is not possible.
With regard to the hypertension issue, a rating decision
mailed on April 18, 2003, denied the Veteran's claim for
entitlement to service connection for hypertension. The
Veteran initially perfected an appeal of that decision but
then withdrew that appeal in correspondence dated in August
2005. Therefore, the April 2003 rating decision is final.
38 U.S.C.A. § 7105(c); 38 C.F.R. §§ 3.160(d), 20.200, 20.302,
20.1103. The effect of that finality is to preclude an award
of an effective date prior that denial. Moreover, the
Veteran has not raised a claim of clear and unmistakable
error (CUE) such as to challenge the finality of that
determination.
Based on the foregoing, any effective date awarded for
hypertension in the present case must be later than April 18,
2003. Moreover, as previously noted, the appropriate
effective date of reopened claims shall be the date of
receipt of claim or date entitlement arose, whichever is
later. 38 C.F.R. § 3.400(r).
Here, the RO received the Veteran's request to reopen his
claim for service connection for hypertension on October 31,
2005. There is no evidence that he filed a claim to reopen
prior to that date. Thus, there is no entitlement to an
effective date earlier than October 31, 2005 for the service-
connected hypertension.
As for the remaining issues with effective dates beginning
October 31, 2005, the Board notes that the Veteran never
submitted claims for these VA benefits prior to October 31,
2005. Significantly, there were no claims or reports of
these disabilities/benefits prior to that date, including in
the previous claims dated in June 2001 and December 2002.
Also, while the Veteran was service-connected for diabetes
effective December 10, 2002, there was no allegation of
diabetic neuropathy until the Veteran's October 31, 2005
claim and no medical evidence of peripheral neuropathy of the
lower extremities until the November 3, 2006 VA diabetes
examination. As such, the presently assigned effective dates
of October 31, 2005, are appropriate and there is no basis
for awards of these benefits prior to that date.
With regard to the effective date of TDIU, prior to the
currently signed effective date of October 31, 2005, the
Veteran's only service-connected disability was diabetes
mellitus, evaluated as 10 percent disabling from December
2002 and 20 percent from February 2005.
Total disability ratings for compensation may be assigned,
where the schedular rating is less than total, when the
disabled person is, in the judgment of the rating agency,
unable to secure or follow a substantially gainful occupation
as a result of service-connected disabilities provided that,
if there is only one such disability, this disability shall
be ratable at 60 percent or more, and that, if there are two
or more disabilities, there shall be at least one disability
ratable at 40 percent or more with sufficient additional
disability to bring the combined rating to 70 percent or
more. See 38 C.F.R. §§ 4.16, 4.17.
Prior to October 31, 2005, the Veteran's combined disability
rating clearly did not meet the disability criteria for total
ratings as in 38 C.F.R. §§ 4.16, 4.17. Subsequent to the
initial grant of service connection for diabetes mellitus in
April 2005, the Veteran did not submit a claim for increased
rating with evidence of individual unemployability. See
Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001).
The Veteran initially met the schedular requirements for the
assignment of a TDIU as of October 31, 2005, the effective
date of the grant of service connection and a 70 percent
rating for PTSD; the grant of service connection and a 100
percent rating for residuals of a cerebrovascular accident;
the grant of service connection and a 30 percent rating for
hypertension; and the grant of service connection and
separate 10 percent ratings for peripheral neuropathy of the
bilateral lower extremities.
A review of the claims file does not disclose any earlier
correspondence or other qualifying communication prior to the
October 31, 2005 statement that can reasonably be construed
as a pending unadjudicated claim for a TDIU. While under the
express provisions of 38 C.F.R. § 3.400(o)(2) an increased
rating may be assigned up to one-year before the date of
claim, here the Veteran did not also meet the schedular
criteria for a TDIU before October 31, 2005. Where schedular
criteria under 38 C.F.R. § 4.16(a) are not met, the
procedures for assignment of a TDIU on an extraschedular
basis require a referral to the RO in the first instance. 38
C.F.R. §§ 3.321(b)(1). In any event, the record does not
indicate or suggest that diabetes mellitus, the Veteran's one
service-connected disability prior to October 31, 2005,
caused a demonstrable limitation in employment capacity that
would have otherwise required evaluation outside of the
schedular criteria.
Accordingly, the current effective date of October 31, 2005,
for a TDIU correctly corresponds to the date of filing of a
claim, and the earliest date upon which factual entitlement
to that benefit was demonstrated.
As for the issues with effective dates beginning November 3,
2006, the Board notes that the Veteran never submitted claims
for these benefits. Rather the RO inferred claims for these
benefits after reviewing the November 3, 2006 VA examination
report. This examination report is the first indication of
erectile dysfunction in the claims file. Significantly,
there was no claim or report of erectile dysfunction prior to
that date, including in the previous claims dated in June
2001 and December 2002. As such, the presently assigned
effective dates of November 3, 2006, are appropriate and
there is no basis for awards of these benefits prior to that
date.
While the Veteran may have submitted an initial claim for VA
benefits in June 2001, the only issue mentioned in this claim
was jungle rot on both feet and legs. As such, the presently
assigned effective dates are appropriate and there is no
basis for awards of these benefits prior to that date.
As the preponderance of the evidence is against the claims,
the benefit of the doubt rule is not applicable. See 38
U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-
56 (1990).
Notice and Assistance
Upon receipt of a complete or substantially complete
application for benefits and prior to an initial unfavorable
decision on a claim by an agency of original jurisdiction, VA
is required to notify the appellant of the information and
evidence not of record that is necessary to substantiate the
claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159;
Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v.
Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. 2006). The notice should also address
the rating criteria or effective date provisions that are
pertinent to the appellant's claim. Dingess v. Nicholson, 19
Vet. App. 473 (2006).
In cases where service connection has been granted and an
initial disability rating and effective date have been
assigned, the typical service connection claim has been more
than substantiated, it has been proven, thereby rendering 38
U.S.C.A. § 5103(a) notice no longer required because the
purpose that the notice is intended to serve has been
fulfilled. Dingess, 19 Vet. App. 473 (2006); Dunlap v.
Nicholson, 21 Vet. App. 112 (2007). The appellant bears the
burden of demonstrating any prejudice from defective notice
with respect to the downstream elements. Goodwin v. Peake,
22 Vet. App. 128 (2008). That burden has not been met in
this case.
Nevertheless, the record reflects that the appellant was
provided a meaningful opportunity to participate effectively
in the processing of his claim such that the notice error did
not affect the essential fairness of the adjudication now on
appeal. The appellant was notified that his claims were
awarded with specific effective dates assigned. He was
provided notice how to appeal that decision, and he did so.
He was provided a statement of the case that advised him of
the applicable law and criteria required for an earlier
effective date and he demonstrated his actual knowledge of
what was required to substantiate an earlier effective date
in his argument included on his Substantive Appeal. Although
he was not provided pre-adjudicatory notice that he would be
assigned an effective date in accordance with the facts found
as required by Dingess, he was assigned the date of the
claims (actual and inferred) as effective dates, the earliest
permitted by law. 38 U.S.C.A. § 5110(a).
Thus, based on the record as a whole, the Board finds that a
reasonable person would have understood from the information
that VA provided to the appellant what was necessary to
substantiate his claim, and as such, that he had a meaningful
opportunity to participate in the adjudication of his claim
such that the essential fairness of the adjudication was not
affected.
VA has obtained service treatment records, assisted the
appellant in obtaining evidence, afforded the appellant
physical examinations, obtained medical opinions as to the
etiology and severity of disabilities, and afforded the
appellant the opportunity to give testimony before the Board
although he declined to do so. All known and available
records relevant to the issues on appeal have been obtained
and associated with the appellant's claims file; and the
appellant has not contended otherwise. VA has substantially
complied with the notice and assistance requirements and the
appellant is not prejudiced by a decision on the claim at
this time.
ORDER
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of service connection for
PTSD is denied.
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of individual unemployability
is denied
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of service connection for
residuals of a cerebrovascular accident is denied
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of SMC based on housebound
allowance is denied.
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of service connection for
hypertension with renal insufficiency is denied.
The claim for assignment of an effective date earlier than
November 3, 2006, for the award of service connection for
erectile dysfunction is denied.
The claim for assignment of an effective date earlier than
November 3, 2006, for the award of SMC based on loss of use
of a creative organ is denied
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of service connection for
peripheral neuropathy of the right lower extremity is denied.
The claim for assignment of an effective date earlier than
October 31, 2005, for the award of service connection for
peripheral neuropathy of the left lower extremity is denied.
____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs